FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 99-13
Date of Issue: April 27, 1999

WHETHER A JUDGE WHO IS CURRENTLY REPRESENTED BY AN ATTORNEY MUST RECUSE HIMSELF/HERSELF WHENEVER MEMBERS OF THE ATTORNEY'S FIRM APPEAR BEFORE THE JUDGE ON EITHER A CONTESTED MATTER OR AN UNCONTESTED MATTER?

ISSUE

Whether a judge who is currently represented by an attorney must recuse himself/herself whenever members of the attorney's firm appear before the judge on contested or uncontested matters, whether or not recusal is requested?

ANSWER:
The judge must automatically recuse herself, even if the parties do not request recusal.

FACTS

The inquiring judge is currently represented by an attorney. Occasionally one of the other members of the attorney's law firm appears before the judge. When such an attorney appears before the judge, she always discloses the relationship. The judge asks whether she must automatically disqualify herself whenever a member of the attorney's firm appears before her in contested or uncontested matters, whether or not she is asked to recuse.

DISCUSSION

If a judge believes that a relationship with an attorney must be disclosed or if a judge believes he/she should recuse himself or herself then that same disclosure and/or recusal applies when any member of the attorney's law firm appears before the judge. See Opinion 89-8.

Canon 3E(1) states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned..." The Commentary to Canon 3E(1) states that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply." §38.05, Fla. Stat. (1997) authorizes a judge on his or her own motion to recuse himself or herself. Consequently, the decision to recuse one's self based upon Canon 3E(1) and §38.05, Fla. Stat. (1997) is left up to each judge.

The inquiring judge has acted correctly in disclosing the current attorney client relationship when other attorneys from the firm appear before her. However, in the present inquiry disclosure alone is insufficient.

In Opinion 79-2 the Committee examined this issue. The Committee found that it was not necessary that the judge voluntarily recuse himself in either contested or uncontested matters wherein any member of the firm representing him was attorney of record in a case pending before the judge. The Committee stated that the inquiring judge should acquaint himself with the relevant facts and offer to recuse himself upon request. This Committee recedes from Opinion 79-2.

The attorney-client relationship is among the most revered professional relationships in our society. The very foundation of this relationship is based upon trust and confidentiality. It would be hard to imagine that litigants, even in uncontested matters, would not be distrustful of the impartiality of a judge in a matter in which a law firm presently representing the judge was the firm of record in a matter before that judge.

Canon 2 states that, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." The Commentary to Canon 2 notes that, "The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." A judge presiding over an action, wherein an attorney appears from the firm who represents the judge, creates such an appearance of impropriety.

In conclusion, the inquiring judge should automatically recuse herself/himself when an attorney who is a member of the firm representing the judge appears before her/him. The judge should consider requesting an administrative order recusing herself/himself from such cases.

REFERENCES

Florida Code of Judicial Conduct Canon 2, 3E(1), Commentary to Canon 2 and Commentary to Canon 3E(1).

Florida Judicial Ethics Advisory Committee Opinions: 79-2 and 89-8. §38.05, Fla. Stat. (1997).

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.


For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Harry T. and Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.


Participating Members: Judges Cardonne, C. Kahn, L. Kahn, Patterson, Rodriquez, Silverman, Smith, Swartz, and Attorney Blanton.

Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)